Faithless Electors Fizzle, But Leave Uncertainty

Update January 6, 2017: Today, in joint session, Congress read each certificate of ascertainment from each of the 50 states to count the electoral votes for President and Vice President. The count was as predicted below, with the deviant votes cast in Minnesota, Maine, and Colorado not counted.

On December 19th, each state's electors met and cast their votes for President and Vice President. Most voted for Donald Trump or Hillary Clinton for President - as expected - but this year 10 out of 538 electors attempted to vote for someone else, and at least 7 of those will be counted. This is the largest number of "faithless electors" for president in history - excluding 1872, when Democratic nominee Horace Greeley had died before the meeting of the electors. Like every other example of electors deviating from their party's nominee, it did not change the outcome - but has raised concerns about what might have happened in a year with a closer electoral vote tally, like the 271 to 267 win for George W. Bush in 2000.

If the 7 deviant votes that were not replaced are counted, the final electoral vote will not be 306-232, but instead be as follows:

Donald Trump - 304 votes

Hillary Clinton - 227 votes

Colin Powell - 3 votes

Bernie Sanders - 1 vote

Faith Spotted Eagle - 1 vote

John Kasich - 1 vote

Ron Paul - 1 vote

Most of the deviant votes took place in the states that require that electors vote for their party's nominee, demonstrating the various ways those laws work (or don't work, as the case may be).

Three electors (all pledged to Clinton) attempted to vote for someone other than Clinton, but were deemed to have resigned. For example, Minnesota has adopted the Uniform Faithful Presidential Electors Act, under which electors are replaced with an alternate and their votes canceled in the case of a deviant vote. As a result, the vote of Muhammad Abdurrahman, the Minnesota elector who attempted to vote for Bernie Sanders, was canceled and replaced. The other two were from Maine (elector David Bright also attempted to vote for Bernie Sanders) and Colorado (elector Michael Baca, co-founder of the "Hamilton Electors" effort, attempted to vote for John Kasich). Maine and Colorado have not adopted Faithful Presidential Electors Acts, and their state law does not clearly allow for canceling deviant votes. Congress's certifying the count on January 6 (and any subsequent lawsuits) will decide whether those votes will be counted or not.

Four electors in Washington (also all pledged to Clinton) voted for other candidates - three for Colin Powell and one for Faith Spotted Eagle. Under Washington law, those votes will count as cast, but they will each be fined up to $1,000.

One Clinton-pledged elector in Hawaii (David Mulinix) voted for Bernie Sanders - under Hawaii law that vote was technically illegal, but the elector will not face any penalty and his vote will count as cast.

Finally, two Texas electors were the only Republican electors who voted for someone other than Donald Trump. Chris Suprun voted for John Kasich (and was subsequently castigated by Texas governor Greg Abbott). Bill Greene voted for Ron Paul. Texas has no law requiring electors to vote for their party's nominee, so those electors acted lawfully and their votes will be counted as cast.

The 2016 election shed more light on the identities of the electors than any other presidential election that we can identify. In a disturbing development, electors were extensively lobbied and, in some cases, threatened or allegedly bribed. At one point,at least 20 Republican electors allegedly were considering voting for someone other than Donald Trump. In the end, only two votes for the apparent President-elect were altered. In fact, Donald Trump's electoral vote lead widened by at least 3 votes.

This election, therefore, maintains the pattern of electors as rubber stamps for their political party, a pattern solidly in place since the election of 1796 when the sole faithless elector (Samuel Miles, who voted for Thomas Jefferson rather than John Adams to whom he was pledged) was chastised in a letter to the Gazette which read: "What, do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be president? No! I choose him to act, not to think."

Although faithless electors had no major impact this year, it has raised real concerns for the future, and is further indication of the instability of the current system. Electors may be less willing to cast deviant votes in a closer election for fear of changing the outcome, but we cannot know that for sure.